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Forest Service water proposal upsets Tipton

A proposed U.S. Forest Service directive poses a new threat to Colorado water rights, said U.S. Rep. Scott Tipton, R-Colo.

The proposed directive, which is entering the public-comment phase, would give the Forest Service new power over groundwater and establish “new bureaucratic hurdles to interfere with private water users’ ability to access their water,” Tipton said in a statement. “These backdoor attempts by the federal government to circumvent state law, take control of Western water, and trample private property rights are nefarious, coordinated and will not stand.”

The new directive is needed to “strengthen and support the Forest Service’s ability to manage the National Forest System to protect water resources and support healthy and resilient ecosystems,” Forest Service chief Tom Tidwell said in a statement.

The changes would improve the Forest Service’s ability to analyze and manage potential uses of forest land that could affect groundwater resources, the agency said.

Under the proposed directive, Forest Service managers would treat all surface and groundwater as hydraulically connected, unless it can be demonstrated otherwise.

It also would require that the Forest Service evaluate applications for state-issued water rights on adjacent lands to be studied for potential effects on Forest Service groundwater.

Regional foresters would be required to obtain water rights to groundwater and groundwater-dependent surface water needed by the Forest Service.

Tipton likened the directive to a proposed rule by the Environmental Protection Agency that Tipton said would allow that agency “to regulate virtually every form of surface water within the United States. These rules jeopardize every water user’s ability to freely access their water and maintain their livelihood.”

Comments on the proposed directive can be made at the federal eRulemaking portal, http://www.regulation.gov. Comments may also be submitted by email to .(JavaScript must be enabled to view this email address) or by mail to BMP Directive Comments, USDA Forest Service, Attn: Michael Eberle — WFWARP, 201 14th St. SW., Washington, DC, 20250.

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By Darren Davidson - Wednesday, May 14, 2014

In the 1980s, the EPA and the Corps indicated that drainage and irrigation ditches were excluded from the definition of the “Waters of the United States.” While over time the agencies have reinterpreted this by asserting increasing jurisdiction over such ditches. The new regulation they are now proposing would place most ditches within the scope of the “Waters of the United States.” The new regulation would regulate “tributaries” of what once was only navigable waters. This would mean all irrigation tailwater ditches and ditches which contain seasonal or rainwater runoff would become regulatory as they ultimately flow to the Colorado River.

The practical effect of these proposed changes would be that agricultural ditches would be far more regulated than they are now. Since ditches typically are located throughout farm and ranch lands, this would expose large tracts of land to potential Clean Water Act regulation. Basically anywhere you see a cottonwood tree the Corps would have regulatory authority.

We should be deeply concerned by this vast overreach by the EPA and the corps. Under this unprecedented expansion, essentially all waters in the country including tail waters, roadside ditches, irrigation drainages, and others would be subject to regulation by the EPA and the Corps, regardless of size.
This is a step too far. This proposal by EPA and the Corps would require farmers and ranchers to obtain costly permits and maintain enormous volumes of records. It would cause every farmer and rancher to become certified in water management practices in ways similar to contractors and developers have had to over the last 10 years to manage stormwater runoffs.
The burden for this regulatory overreach would be passed along to consumers through a system of less reliable food supplies and ever increasing prices to offset the increased regulation. These permits require documentation of everyday life. This would limit the ability to respond to immediate environmental threats to their property as they would have to wait 45 days to obtain permits to control erosion from unpredictable Spring storms. These permits will stifle economic growth and inhibit future prosperity without any corresponding environmental benefit. The drainages in question are mostly regulated already by local and state agencies. In other cases drainage districts have been in place for over a century to regulate and control water flows. And yet somehow this is not enough. This proposed regulation and the burdensome federal permitting scheme will only hinder the economy of the West with no real net effect.
Almost all activities on our open land will now touch “Waters of the United States” under the expanded definition. For the first time, common ditches are included in the definition of a “tributary” and now will come under federal jurisdiction. Farming, ranching, developing land and other activites would have an additional layer of regulation.